1
Fair Work Act 2009
s.234 - Application for an intractable bargaining declaration
Transport Workers’ Union of Australia
v
Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd
(B2023/1106)
DEPUTY PRESIDENT SAUNDERS
DEPUTY PRESIDENT WRIGHT
COMMISSIONER CRAWFORD
SYDNEY, 7 MARCH 2024
Application for intractable bargaining declaration – whether the Commission has dealt with
the dispute – whether there is no reasonable prospect of agreement being reached if the
Commission does not make the declaration – whether it is reasonable in all the circumstances
to make the declaration – whether a post declaration negotiating period should be granted –
intractable bargaining declaration made with 21 day post-declaration negotiating period.
Introduction and background
[1] The Transport Workers’ Union of Australia (TWU) has made an application to the Fair
Work Commission (Commission) pursuant to s 234 of the Fair Work Act 2009 (Cth) (Act) for
an intractable bargaining declaration in relation to employees of Cleanaway Operations Pty
Limited (Cleanaway) who work at its Unanderra depot and who are covered by the Cleanaway
Solid Waste Services (C&I) Wollongong Enterprise Agreement 2020 (Unanderra EA).
Cleanaway opposes the making of the intractable bargaining declaration.
[2] A similar application was made by the TWU in relation to Cleanaway’s employees who
work at its Erskine Park depot. Those employees are covered by the Cleanaway Erskine Park
Drivers Enterprise Agreement 2020. Cleanaway did not oppose that application. Deputy
President Wright made an intractable bargaining declaration on 12 January 2024 in relation to
Cleanaway’s employees who work at its Erskine Park depot.1
[3] There are about 36 Cleanaway employees based at its Unanderra depot. About 20 of
those employees are covered by the Unanderra EA (Bargaining Employees) and it is proposed
that they will be covered by a replacement enterprise agreement. The Bargaining Employees
work across Cleanaway’s commercial and industrial (C&I) waste business and its container
deposit scheme (CDS) business, servicing Cleanaway’s clients in Wollongong and surrounding
areas. Other Cleanaway employees based at the Unanderra depot undertake maintenance works
and are covered by a different enterprise agreement.
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DECISION
AUSTRALIA FairWork Commission
[2024] FWCFB 127
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[4] The TWU is a bargaining representative in relation to the bargaining for an enterprise
agreement to replace the Unanderra EA. There are also two individual bargaining
representatives, neither of whom took any part in the current proceedings before the
Commission.
[5] We heard the TWU’s application on 26 and 27 February 2024. The TWU adduced
evidence from Ms Isabella Wisniewska, Legal Officer of the TWU, Mr Ryan Smith, an official
of the TWU who is responsible for representing TWU members working for Cleanaway at the
Unanderra depot, and Mr William Stephen, an employee of Cleanaway who works at the
Unanderra depot. Cleanaway adduced evidence from Ms Michaela White, ER/IR Manager of
Cleanaway, and Mr David Moon, Regional Manager of Cleanaway for Southern NSW/ACT,
including the Unanderra depot. Both parties filed written submissions and made supplementary
oral submissions at the hearing.
Statutory framework
[6] Subdivision B of Division 8 (FWC’s general role in facilitating bargaining) sits within
Part 2-4 of the Act. It governs applications for intractable bargaining declarations.
[7] Because the TWU is a bargaining representative for the proposed agreement, it has the
right to make an application for an intractable bargaining declaration (s 234(1) of the Act).
[8] Section 235 of the Act relevantly provides:
“(1) The FWC may make an intractable bargaining declaration relation to a proposed
enterprise agreement if:
(a) an application for the declaration has been made; and
(b) the FWC is satisfied of the matters set out in subsection (2); and
(c) it is after the end of the minimum bargaining (see subsection (5)).
(2) The FWC must be satisfied that:
(a) the FWC has dealt with the dispute about the agreement under section
240 and the applicant participated in the FWC’s processes to deal with
the dispute; and
(b) there is no reasonable prospect of agreement being reached if the FWC
does not make the declaration; and
(c) it is reasonable in all the circumstances to make the declaration, taking
into account the views of all the bargaining representatives for the
agreement.”
[9] Section 235A of the Act provides:
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“(1) The FWC may, if it considers it appropriate to do so, specify in the declaration
a period (the post-declaration negotiating period) that:
(a) starts on the day the declaration is made; and
(b) ends on:
(i) the date specified by the FWC in the declaration; or
(ii) any late day determined under subsection (2).
(2) The FWC may, if it considers it appropriate to do so and taking into account any
views of the bargaining representatives, extend the period referred to in
subsection (1) by determining a later day for the purposes of subparagraph
(1)(b)(ii).”
[10] Another Full Bench of the Commission made the following observations, with which
we agree, about these provisions in United Firefighters’ Union of Australia v Fire Rescue
Victoria:2
“[27] The precondition in s 235(1)(b) requires the Commission to be ‘satisfied’ as to
each of the matters in paragraphs (a)-(c) of s 235(2). The process by which a tribunal
does, or does not, reach a state of satisfaction about a prescribed matter involves the
making of an evaluative judgment of a discretionary nature. The exercise of discretion
involved will be wider where the prescribed matter is one of ‘opinion or policy or taste’
(as is the case with paragraphs (b) and (c) of s 235(2)) than one of ‘objective fact’
(paragraph (a)).
[28] As indicated, satisfaction as to s 235(2)(a) simply requires a finding of fact that
the Commission has dealt with the dispute about the agreement under s 240 and the
applicant for the intractable bargaining declaration has participated in the Commission’s
processes to deal with the dispute. Section 240 is a provision by which a bargaining
representative for a proposed enterprise agreement may apply to the Commission for it
to deal with a dispute about the agreement which the bargaining representatives are
unable to resolve. Under ss 240(4) and 595, the Commission may deal with such a
dispute by mediation, conciliation, making a recommendation or expressing an opinion,
and by consent arbitration, and these may be understood as the Commission’s ‘processes
to deal with the dispute’ referred to in s 235(2)(a). We note that s 235(2)(a) refers to the
Commission having dealt with ‘the’ dispute about the proposed agreement, not simply
‘a’ dispute about the agreement. On one view, the use of the definite article suggests
that the dispute which the Commission has previously dealt with under s 240 must be
the same as the dispute which is said to have caused bargaining to become intractable
for the purpose of an application under s 234. However, as will later become apparent,
this constructional issue need not be determined in this matter.
[29] Section 235(2)(b) requires the Commission to make an evaluative judgment as
to whether there is ‘no reasonable prospect of agreement being reached’ if an intractable
bargaining declaration is not made. ‘No reasonable prospect’ is obviously not the same
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as ‘no prospect’ in that it does not require a ‘certain and concluded determination’ that
an agreement cannot be reached if a declaration is not made but rather, on the ordinary
meaning of the words used, requires an evaluative judgment that it is rationally
improbable that an agreement will be reached. Paragraph [846] of the Revised
Explanatory Memorandum (REM) for the Fair Work Legislation Amendment (Secure
Jobs, Better Pay) Bill 2022 (SJBP Bill), which explains this provision, is consistent with
this approach:
… This does not require the FWC to be satisfied that an agreement could never
be reached but rather that the chance of the parties reaching agreement
themselves is so unlikely that it could not be considered a reasonable chance. It
is unlikely that the FWC would reach such a state of satisfaction unless the
parties had been bargaining for an extended period and had exhausted all
reasonable efforts to reach agreement, but the provision leaves it up to the FWC
to determine, in all the circumstances, whether it is satisfied that there is no
reasonable prospect of the parties reaching agreement if the FWC does not make
the declaration. …
[30] Satisfaction in respect of s 235(2)(c) requires the Commission to make a further
evaluative judgment, namely that it is reasonable in all the circumstances to make the
declaration sought, taking into account the views of the bargaining representatives for
the agreement. The ‘reasonable in all the circumstances’ criterion requires an
assessment of what is ‘agreeable to reason or sound judgment’ in the context of the
relevant matters and conditions accompanying the case. The REM for the SJBP Bill
gives examples of potentially relevant circumstances as follows:
This would provide scope for the FWC to, for example, consider the dispute in
the context of the whole of the relationship of the parties, the history of the
bargaining, the conduct of the parties, the prevailing economic conditions, and
the bargaining environment.
[31] The requirement to take into account the views of the bargaining representatives
means that their views must be treated as a matter of significance, but not necessarily a
determinative consideration, in the assessment of whether it is reasonable in all the
circumstances to make the determination sought.
[32] Where the Commission is satisfied as to each of the matters in paragraphs (a)-
(c) of s 235(1), it retains a residual discretion (‘may make’) as to whether an intractable
bargaining declaration is actually made. However, it is difficult to identify what
discretionary matters might remain for consideration if the Commission has already
satisfied itself as to the criteria in s 235(2).
[33] Where an intractable bargaining declaration is made pursuant to s 235, s 235A
confers upon the Commission the power to specify a ‘post-declaration negotiating
period’…
[34] The discretionary nature of the above provision is in contrast to s 266(3), which
requires a ‘post-industrial action negotiating period’ when a termination of industrial
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action instrument has been made pursuant to ss 423, 424 or 431. The REM explains that
s 235A ‘would allow the FWC to, when making an intractable bargaining declaration,
specify a period after the making of the declaration for the parties to continue to
negotiate with a view to reaching an enterprise agreement before the FWC proceeds to
make a workplace determination’. On one view, it would be counter-intuitive to specify
a post-declaration negotiating period where the Commission must have already reached
satisfied itself pursuant to s 235(2)(b) that there is no reasonable prospect of agreement
being reached if a declaration is not made. Notwithstanding this, there may be
circumstances which justify the specification of a post-declaration negotiating period,
as is illustrated by this case and discussed further below.”
[11] We add to these observations the following matters:
(a) Each application for an intractable bargaining declaration will turn on its own facts,3
notwithstanding that a declaration may or may not have been made in other (even
related) proceedings, such as TWU v Cleanaway Operations Pty Ltd.4
(b) In assessing whether there is no reasonable prospect of agreement being reached if
the Commission does not make a declaration, it is necessary to have regard to the
history of negotiations and any developments or negotiations which take place up
until the time of the assessment.5
(c) Consideration as to whether there is no reasonable prospect of agreement being
reached does not require any assessment of the merits of possible alternative
provisions that might be arbitrated in a later determination.6
(d) The subjective views of parties, employees, union officials or any other individuals
involved in bargaining as to the criteria in paragraphs 235(2)(a), (b) and (c) of the
Act are not determinative. The test is objective. The task involves the Commission
having regard to all the relevant circumstances and then deciding whether or not it
is satisfied of the statutory criteria in s 235(2) of the Act.
[12] We do not accept the contention advanced on behalf of Cleanaway that the Commission
will not have “dealt with the dispute” within the meaning of paragraph 235(2)(a) until the
Commission has had the opportunity to use all of its efforts to assist the parties to resolve the
dispute, using its powers under s 595, and the Commission has dealt with the s 240 proceedings
to conclusion. Cleanaway relies on submissions to this effect made by the ACTU in different
proceedings involving Virgin Australia Regional Airlines. Those proceedings were resolved
and therefore not determined by the Commission.
[13] If dealing with s 240 proceedings “to conclusion” requires the proceedings to be either
discontinued by the applicant or dismissed by the Commission, such an interpretation is not
supported by the text, context or purpose of s 235(2)(a) of the Act. The provision uses the
expression “dealt with” rather than a word or expression connoting finalisation, conclusion,
discontinuance or dismissal. The ordinary meaning of the word “dealt” is the “past tense and
past participle of deal”.7 The most applicable ordinary meanings of the expression “deal with”
include “to occupy oneself or itself with” and “to take action with respect to”.8 It follows that a
person or body may have dealt with a dispute, within the ordinary meaning of that expression,
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even though the dispute is ongoing and may involve the person or body having future dealings
with it. As to context, s 240 bargaining disputes involve members of the Commission using
their dispute resolution tools and skills to assist parties to reach agreement on disputed issues
in the course of bargaining for a new enterprise agreement. This may involve the member of
the Commission conciliating or mediating the dispute, asking parties to identify their positions,
interests and reasons for holding those positions and interests, requesting further information
from one or more parties, expressing opinions, making recommendations, suggesting that
further bargaining meetings take place between the parties, or conducting a consent arbitration
of one or more matters in dispute. It is common in s 240 applications for the Commission to
keep its file open for a period of time after having dealt with the matter but not resolving all (or
any) issues in dispute, so that either party can request further assistance from the Commission.
In these circumstances, the Commission may, at a particular point in time, have dealt with the
s 240 application extensively, notwithstanding that it may have future dealings with the dispute.
As to purpose, the objective of s 235(2)(a) is plainly to ensure that the Commission has been
given the opportunity to assist the parties to resolve their bargaining dispute by agreement
before the Commission makes an intractable bargaining declaration and moves to the next step
of determining the disputed matters. Consistent with this objective, the Commission must have
had a real opportunity to take action with respect to the bargaining dispute in order to have dealt
with it within the meaning of s 235(2)(a). But the purpose does not suggest a need for the s 240
proceedings to be at an end (i.e. discontinued or dismissed) to meet the criterion of the dispute
having been “dealt with”.
[14] Nor is there anything in the text, context or purpose of s 235(a) to support a conclusion
that the Commission must have used all of its available powers under s 595 of the Act in order
to have “dealt with” the dispute. Many s 240 disputes involve the Commission exercising one
or more powers under s 595 but not, for example, making a recommendation or expressing an
opinion. The Commission has a discretion under s 595(2) to deal with a dispute as it sees fit. It
is a matter of judgment for the Commission member dealing with the dispute to determine
which, if any, of the methods to which reference is made in s 595(2) should be applied to the
circumstances of a particular dispute. The question of whether the Commission has dealt with
a s 240 application is one of fact, which must be assessed by reference to all the relevant
circumstances.
[15] There may be cases in which there is a real question as to whether the Commission has
dealt with the dispute under s 240 of the Act because, for example, the Commission has only
received the application and conducted a preliminary conference for the purpose of finding out
about the matter and deciding how best to deal with the dispute. Each case will turn on its own
facts.
[16] Cleanaway made much in its submissions of the fact that one of the objects of the Act
is to achieve “productivity and fairness through an emphasis on enterprise-level collective
bargaining underpinned by simple good faith bargaining obligations and clear rules governing
industrial action”9 and two of the objects of Part 2-4 of the Act are to “provide a simple, flexible
and fair framework that enables collective bargaining in good faith, particularly at the enterprise
level, for enterprise agreements that deliver productivity and benefits” and “to enable the FWC
to facilitate good faith bargaining and the making of enterprise agreements”.10 Cleanaway
submits that in light of these objects and the role of the Commission to facilitate bargaining, it
is not for the Commission to supplant bargaining by being rushed to arbitration, or by enabling
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one party or the other by its intransigence to self-servingly declare that bargaining is intractable,
and in so doing to make it inevitable that a declaration under s 235 will be made.
[17] As was explained in the Revised Explanatory Memorandum to the Fair Work
Legislation Amendment (Secure Jobs, Better Pay) Bill 2022,11 “while the primary focus of the
FW Act would remain on supporting parties to reach their own agreements through collective
bargaining in good faith, the FWC would, following the proposed amendments, have the ability
to determine any outstanding matters by arbitration where there is otherwise no reasonable
prospect of the parties reaching agreement.” The intractable bargaining declaration provisions
of the Act set out a new mechanism to resolve an impasse in bargaining if the statutory criteria
in s 235(2)(a), (b) and (c) are satisfied.
[18] There are other provisions of the Act which recognise that enterprise level bargaining
does not always work well or give rise to appropriate outcomes. For example, the Commission
has the power under s 424 of the Act to suspend or terminate protected industrial action if it is
satisfied that the action has threatened, is threatening, or would threaten to endanger the life,
personal safety, or welfare of the population or part of it, or cause significant damage to the
Australian economy or an important part of it.
Contentious matters and issues in dispute
[19] There is no dispute between the parties, and we are satisfied on the evidence, that:
(a) an application for an intractable bargaining declaration has been made (s 235(1)(a) of
the Act); and
(b) the nominal expiry date of the Unanderra EA was 1 July 2022. Bargaining commenced
in November 2022. It follows that the (9 month) minimum bargaining period ended in
August 2023 (s 235(1)(c) & (5) of the Act).
[20] The issues in dispute between the parties concern each of the elements of s 235(2)(a),
(b) and (c) of the Act.
Relevant facts
[21] Detailed evidence was adduced from both parties in relation to the history of bargaining
for an enterprise agreement to replace the Unanderra EA, as well as what was said during
various conferences before the Commission in connection with the bargaining. We have
considered that evidence, but for the purpose of explaining our reasons for reaching the
necessary state of satisfaction as to the matters set out in s 235(2)(a), (b) and (c) of the Act we
do not need to record in this decision every aspect of the history of bargaining and all the
comments made throughout the conferences before the Commission. It is sufficient to provide
the following summary of the relevant facts and circumstances, so that we may explain the
reasons for our decision.
[22] In July 2021, the Bargaining Employees received their last pay rise.
[23] On 1 July 2022, the Unanderra EA reached its nominal expiry date.
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[24] In November 2022, Cleanaway issued a notice of employee representational rights to
the Bargaining Employees.
[25] On 16 November 2022, the first bargaining meeting took place between Cleanaway and
the TWU bargaining committee, which consisted of Mr Smith, Mr Stephen and a TWU delegate
who works at the Unanderra depot, Mr Stephen Ten-Hoonte.
[26] On 30 November 2022, a bargaining meeting took place.
[27] On 14 December 2022, a bargaining meeting took place.
[28] On 21 December 2022, a bargaining meeting took place.
[29] On 18 January 2023, a bargaining meeting took place.
[30] On 31 January 2023, a bargaining meeting took place.
[31] On 23 February 2023, a bargaining meeting took place.
[32] On 27 February 2023, Cleanaway communicated a proposal to the TWU which included
a claim by Cleanaway to change the ordinary hours of work provisions of the Unanderra EA. It
is contextually relevant that Cleanaway is covered by more than about 37 enterprise agreements
approved over the last 24 months which have the capacity for ordinary hours to be worked from
Monday to Sunday. Cleanaway has also made other enterprise agreements that provide for
different hours of work depending on when an employee was employed, or which include
obligations on Cleanaway relation to rostering of ordinary hours that can only be changed in
certain circumstances.12
[33] Cleanaway has explained that “the need to move towards a clause allowing for ordinary
hours to be worked Monday to Sunday is about future proofing” the Unanderra depot.13 In
particular, being able to roster employees at the Unanderra depot to work ordinary hours from
Monday to Sunday:
(a) would enable Cleanaway’s CDS business, which operates seven days a week as a result
of the need to collect containers from drop-off/collection points every day and
sometimes multiple times a day, to continue to operate efficiently;
(b) would ensure that Cleanaway’s C&I business unit could continue to service its existing
clients, including those that require weekend collections, noting that there has been a
gradual shift towards seven day collection services being required by clients. Also of
relevance is that there have been some instances where there have been operational
challenges to find enough employees at the Unanderra depot to work on a weekend,
particularly where employees pull out of the voluntary overtime at the last minute;
(c) would increase Cleanaway’s prospect of attracting new clients that require flexible
service including on weekends. Continuing to run a model whereby weekend work is
undertaken by employees on a voluntary basis on overtime is higher risk and potentially
not sustainable; and
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(d) would enable alternative rosters for employees, or potential future employees, who
request different or flexible working arrangements to suit their individual
circumstances.14
[34] Cleanaway’s starting position is that ordinary hours of work should be able to be
rostered Monday to Sunday due to the nature of the work being performed. But Cleanaway says
that there are arrangements that can be made to ensure Cleanaway’s objectives of the particular
site requirements are met with different mechanisms as to hours of work. This is evidenced, so
Cleanaway contends, by the different enterprise agreements it has made with different groups
of employees in different geographical locations around Australia.15 Notwithstanding these
matters:
(a) Ms White accepted in her evidence that changing the ordinary hours provisions in the
Unanderra EA is a “key matter” and “one of the most important matters” in bargaining
for Cleanaway; and
(b) Mr Moon accepted in his evidence that Cleanaway is determined to move to a seven
day a week span of ordinary hours for the Unanderra depot, Cleanaway is not going to
budge on this issue, and Mr Moon does not believe that the employees at the Unanderra
depot will support an enterprise agreement which includes the grandfathering of
ordinary hours for existing employees.
[35] The TWU has consistently stated that the Bargaining Employees want to essentially
retain the ordinary hours of work provisions in the Unanderra EA.
[36] On 1 March 2023, a bargaining meeting took place.
[37] On 23 March 2023, a bargaining meeting took place.
[38] On 5 April 2023, the TWU made an application to the Commission for a protected action
ballot order in relation to the Bargaining Employees. The order was made by the Commission
on 11 April 2023.
[39] On 19 April 2023, a bargaining meeting was scheduled to take place. It was cancelled
by Cleanaway.
[40] On 21 April 2023, the results of the protected action ballot were revealed. They showed
that a strong majority of the Bargaining Employees voted to approve the taking of protected
industrial action.
[41] On 11 May 2023, a bargaining meeting was scheduled to take place. It was cancelled
by Cleanaway.
[42] Also on 11 May 2023, the TWU issued Cleanaway with a notice of intention to take
protected industrial action on 17 and 18 May 2023. The TWU issued this notice because they
believed that Cleanaway was not moving during bargaining and they were cancelling
bargaining meetings.
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[43] On 16 May 2023, a bargaining meeting took place.
[44] On 17 to 18 May 2023, protected industrial action was taken by the Bargaining
Employees.
[45] On 19 June 2023, a bargaining meeting took place.
[46] On 23 June 2023, a bargaining meeting took place.
[47] On 6 July 2023, a bargaining meeting took place.
[48] In the period between 20 and 21 July 2023, Cleanaway requested the Bargaining
Employees to vote on a proposed enterprise agreement which included a provision whereby
ordinary hours could be worked from Monday to Sunday.16 The result was that 17 employees
voted no to the proposed enterprise agreement and three voted yes.
[49] On 3 August 2023, the TWU filed a s 240 application in the Commission in relation to
bargaining for an enterprise agreement to replace the Unanderra EA. The application included
the following explanation of the main matters in dispute:
“1. Cleanaway and the TWU have not yet reached agreement on two outstanding
clauses to be included in the Replacement Agreement, being:
a. the ordinary hours of work clause (including removal of clause 21(c)
of the Expired Agreement); and
b. the spread of hours.
2. The clauses that Cleanaway presses are strongly opposed by the TWU and its
members, as the clauses represent a material loss to employees of important
conditions of employment and will cause employees to go back financially
particularly given present rates of inflation.
3. The ordinary hours of work clause that Cleanaway pursues leaves the
arrangement of employees’ average weekly hours, over a three month period for
the sole purpose of meeting Cleanaway’s operational requirements.
4. Further, Cleanaway’s removal of clause 21(c) of the Expired Agreement, which
provided that ordinary hours would be “worked on any day Monday to Friday
between the hours of 4.00am and 5.00pm”, means that Cleanaway is able to
introduce what is, in effect, a 7 day roster.
5. This would allow Cleanaway to bypass the operation of clause 24.3, Overtime
Rates, by rostering people on Saturdays and Sundays as part of their ordinary
hours of work.
6. The spread of hours clause, specifically clause 20.2.2 of the Replacement
Agreement, also seeks to increase the daily maximum ordinary hours of work
from 8 hours to 9.5 hours, effectively stripping employees of 1.5 hours of
potential overtime every day.
7. To date Cleanaway and the TWU have been unsuccessful in reaching a mutually
agreeable position on the two outstanding clauses.
8. Accordingly, the TWU seeks the assistance of the Commission in reaching an
outcome.”
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[50] On 10 August 2023, Commissioner Riordan conducted a conference, by telephone, in
relation to the TWU’s s 240 application. The TWU and Cleanaway participated in the
conference. During the conference the parties outlined the extent to which bargaining had taken
place and what they perceived to be the outstanding claims. Commissioner Riordan requested
that the parties engage in two further bargaining meetings, which they did on 17 and 24 August
2023. No substantive progress was made at these bargaining meetings.
[51] On 20 September 2023, the TWU provided Cleanaway with a position paper that
outlined the outstanding claims, as perceived by the TWU.
[52] On 28 September 2023, Commissioner Riordan conducted an in-person conference in
relation to the TWU’s s 240 application. The TWU and Cleanaway participated in the
conference. The parties discussed their positions.
[53] On 13 October 2023, Cleanaway provided the TWU with a response to its position
paper. Cleanaway’s response included its proposed changes to the Unanderra EA and the
reasons for those changes.
[54] On 16 October 2023, the TWU filed its application for an intractable bargaining
declaration in relation to the Unanderra depot.
[55] On 18 October 2023, Commissioner Riordan conducted an in-person conference in
relation to the TWU’s s 240 application. The TWU and Cleanaway participated in the
conference. The parties discussed their positions and requested information about various
matters. Cleanaway advised that it would review its position on outstanding matters and provide
a formal response to the TWU by 30 October 2023.
[56] In her witness statement, Ms White stated that during the conference on 18 October
2023 Mr O’Leary of Cleanaway suggested to the TWU that a further bargaining meeting be
undertaken outside the Commission. Ms White further stated that “the TWU refused to agree
to a further bargaining meeting. Mr Webb said that although the TWU would consider
Cleanaway’s position that it would provide on 30 October 2023, the TWU would in any event
be proceeding with the IBD applications”.17 Ms Wisniewska gave evidence that Mr Webb
responded to the suggestion of further bargaining meetings by saying that was fine but the TWU
would not discontinue its applications for intractable bargaining declarations. During cross
examination, Ms White accepted that (a) Mr Webb did not say that the TWU would not meet,
(b) the TWU never outright refused to attend any bargaining meetings, and (c) in the period
between 13 November 2023 and 24 January 2024, Cleanaway did not make any efforts to meet
with the TWU to bargain for a new agreement to replace the Unanderra EA; instead, Cleanaway
exchanged emails with the TWU. On the basis of these concessions, together with the
supporting evidence of Ms Wisniewska, we find, on the balance of probabilities, that the TWU
did not refuse to attend any bargaining meetings with Cleanaway. As a matter of fact, no
bargaining meetings have taken place since prior to 18 October 2023.
[57] Ms Wisniewska gave evidence that during the conferences before Commissioner
Riordan the parties discussed the idea of grandfathering ordinary hours for existing employees
and the TWU rejected the idea, explaining that the employees wanted one set of terms and
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conditions for all employees, not a two-tier workforce. Ms White gave evidence that she does
not recall grandfathering being discussed during the conferences before Commissioner Riordan
but it may have been discussed. In light of Ms White’s acceptance that grandfathering of
ordinary hours may have been discussed and Ms Wisniewska’s evidence that it was discussed,
we find on the balance of probabilities that the idea of grandfathering ordinary hours for existing
employees was discussed in the conferences before Commissioner Riordan, together with at
least some of the TWU’s reasons for rejecting the proposal.
[58] Ms White also accepted in her evidence that Cleanaway had previously raised the idea
of a maximum of 7.6 ordinary hours for employees on a 5:2 roster, and the TWU had rejected
the proposal.
[59] On 30 October 2023, Cleanaway provided the TWU with an updated position in relation
to outstanding issues in bargaining. Cleanaway’s updated position did not resolve the
outstanding claims between the parties.
[60] Also on 30 October 2023, Cleanaway informed the Commission that it objected to the
intractable bargaining declaration application filed by the TWU. Amongst other things,
Cleanaway indicated that its position was that there was still more bargaining that could occur
and the s 240 proceedings were still being dealt with.
[61] On 31 October 2023, Cleanaway provided an update to the Bargaining Employees on
the bargaining in the form of a memo. The memo outlined Cleanaway’s revised offer that would
set the maximum number of daily ordinary hours for employees working a 5:2 roster as 7.6
hours per day. The memo further stated:
“Next Steps
There are a number of items that are still subject to discussion between the TWU, your
employee representatives, and Cleanaway including consultation, classification
structure, hours of work, weekend penalties, the wage offer, redundancy clauses and the
requirement for an on-call/standby allowance.
Cleanaway is now awaiting a response on their current position from your
representatives and further information on the two applications that are currently within
the Fair Work Commission. We will continue to keep you updated during this process.
Cleanaway wants to take this opportunity to confirm our commitment to continue
productive and meaningful discussions and seek to understand what’s important to you,
including addressing any questions you may have in relation to the Proposed
Agreement.”
[62] On 1 November 2023, the TWU conveyed its response to Cleanaway in relation to four
proposed terms. The response relevantly stated:
“With regards to the Unanderra responses provided, please be advised that:
1. Removal of the on-call/standby clauses is consented to;
[2024] FWCFB 127
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2. Backpay on ordinary hours and overtime is consented to;
3. The ordinary hours of work clause is not consented to; and
4. The amended classification structure that Cleanaway proposed is not consented to.
The yard seeks to retain the classification structure as stated at clause 15 of the
[Unanderra EA]…”
[63] On 8 November 2023, Cleanaway sought clarification from the TWU as to the
outstanding claims in bargaining.
[64] At 2:47pm on 13 November 2023, the TWU filed a notice of discontinuance in the
Commission in relation to its s 240 application because it believed that bargaining had become
intractable. At the time the notice of discontinuance was filed, the s 240 proceedings were not
listed for a further conference and Commissioner Riordan had not informed the parties that he
expected or required any further step to be taken in the s 240 proceedings, nor had the parties
requested that any further step be taken in those proceedings.
[65] At 5:04pm on 13 November 2023, the TWU responded to Cleanaway in relation to the
outstanding claims in bargaining.
[66] In about November 2023, 20 Bargaining Employees signed a petition in the following
terms:
“We the undersigned employees at 5 Charcoal Close, Unanderra NSW 2526 will only
vote in support of an enterprise agreement where ordinary hours are:
a. will be an average of 38 hours per week to be worked within a work
cycle not exceeding 28 days for full-time employees;
b. worked between 4am and 5pm, Monday to Friday; and
c. do not exceed 7.6 hours per day to be worked continuously.”
[67] In late November and the first half of December 2023, Ms White obtained feedback
from some of the Bargaining Employees in relation to the unresolved matters in bargaining. Ms
White says that some of the feedback she received included being told by various Bargaining
Employees that Cleanaway could “buy them out” of the hours of work clause, the employees
would accept the grandfathering of the current hours of work clause for existing employees,
Cleanaway’s hours of work clause would be accepted if Cleanaway provided a 6% wage
increase to the employees, and the maximum daily ordinary hours was a concern.
[68] On 8 December 2023, Cleanaway proposed to the TWU, in writing, that it grandfather
the ordinary hours of work clause in the proposed enterprise agreement for current employees.
[69] On 13 December 2023, the TWU informed Cleanaway that “the yard seeks that all
employees (both current and future) engaged under the proposed agreement work their ordinary
hours Monday to Friday and have the discretion to work Saturdays and Sundays where
Cleanaway requires, paid overtime rates”. On 14 December 2023, the TWU further explained
to Cleanaway that “the response is that the Unanderra yard does not agree to a clause where
there is grandfathering for ordinary hours of work. The yard seeks that ordinary hours are
worked Monday to Friday for all employees, which would constitute weekend work as
overtime”.
[2024] FWCFB 127
14
[70] On 19 December 2023, Cleanaway explained to the Bargaining Employees that the
proposal being put to employees was a package of terms, which meant that if the proposal to
be voted on by the Bargaining Employees was voted down, all previous negotiated financial
and non-financial items may be withdrawn and will be up for renegotiation.18
[71] On 22 December 2023, Cleanaway requested the Bargaining Employees to vote on a
proposed enterprise agreement. The proposed enterprise agreement included grandfathering of
the hours of work provisions, in that existing employees would be able to work ordinary hours
between 4am and 5pm Monday to Friday and new employees would be able to work ordinary
hours between 4am and 5pm Monday to Sunday. Ms White factored the feedback she had
received from employees in November and the first half of December 2023 into the proposal
put by Cleanaway to the Bargaining Employees for a vote on 22 December 2023. The result of
the vote was that 20 Bargaining Employees voted against the proposed agreement and no
Bargaining Employees voted in favour of the proposed agreement. Two Bargaining Employees
did not vote.
[72] On 28 December 2023, Cleanaway informed the TWU that as a result of the proposed
enterprise agreement being rejected, Cleanaway withdrew from their positions in their entirety
and that all matters remained “on the table”.
[73] On 16 January 2024, the TWU informed Cleanaway that it had not been notified that
Cleanaway would withdraw the agreed terms of the proposed agreement if the vote was
unsuccessful. Cleanaway disputed this claim.
[74] On 24 January 2024, Cleanaway filed a s 240 application in the Commission in relation
to bargaining for an enterprise agreement to replace the Unanderra EA. The application filed
by Cleanaway referred to the ordinary hours of work provisions as being one of the main matters
in dispute in bargaining. Cleanaway also contended in its application that the TWU had refused
to provide reasons as to why a grandfathering arrangement did not satisfy the concerns of its
members in relation to ordinary hours of work.
[75] On 30 January 2024, the TWU sent correspondence to Cleanaway responding to its s
240 application. In that correspondence the TWU, among other things:
• refuted the allegation that it had not provided reasons for its position on various issues
throughout the course of bargaining;
• explained that the TWU’s s 240 application was discontinued because “bargaining had
clearly become intractable”; and
• provided the following further explanation in relation to the grandfathering of ordinary
hours:
“TWU members at the Unanderra depot have instructed the TWU that a
grandfathered position on the ordinary hours of work clause is not a position that
will be accepted.
[2024] FWCFB 127
15
The Unanderra depot does not wish to have two separate rostering systems for
current and future employees, as there [sic] are concerned that the workforce
will be two-tiered. If the Unanderra depot becomes a two-tiered workforce, new
employees will be cheaper to work on weekends (Saturdays in particular),
meaning those employees who currently opt into working weekends will be less
likely to receive weekend work.
TWU members at the Unanderra depot have also instructed the TWU to
communicate that changing the ordinary hours of work clause is a claim pursued
by Cleanaway, not the TWU. TWU members at the Unanderra depot are of the
view that the current ordinary hours of work clause has worked well for both
employees and Cleanaway and the only reason for changing to a seven day
operation is to make labour cheaper for Cleanaway.”
[76] On 15 February 2024, Commissioner Ryan conducted a conference, in person, in
relation to the s 240 application filed by Cleanaway. Representatives of Cleanaway and the
TWU attended the conference. The parties spent a few hours in the conference discussing the
main outstanding claims and respective positions, including in relation to ordinary hours of
work. Towards the end of the conference, Cleanaway provided Commissioner Ryan with the
details of a proposed package that it would be willing to offer. Commission Ryan
communicated the proposal to the TWU. The proposal was rejected by the TWU.
[77] On 21 February 2024, Cleanaway provided the TWU with a further proposed enterprise
agreement as a “package … to facilitate discussions”. The essential elements of this package
had been rejected by the TWU at the conference before Commissioner Ryan on 15 February
2024. Cleanaway’s covering letter to its 21 February 2024 offer provides the following
explanation in relation to hours of work:
“a. The ordinary hours of work of a full time Employee are an average of 38 hours
per week over a period of not more than three months.
b. The spread ordinary hours of work will be 4.00am to 5.00pm, Monday to
Sunday.
c. The maximum ordinary hours of work will not exceed 9.5 hours in a single day.
d. Ordinary hours of work on a weekend will be paid at the following penalty rates:
i. Saturday 150% for the first 2 hours and 200% thereafter
ii. Sunday 200% for all hours”
[78] This proposal did not include any grandfathering of ordinary hours for current
employees. It did increase the rate at which ordinary hours of work on a weekend would be
paid to match overtime rates under the Unanderra EA. The proposal also (a) maintained
averaging of ordinary hours over three months, rather than over 28 days under the Unanderra
EA and (b) proposed maximum ordinary hours of 9.5 per day, rather than 8 per day under the
Unanderra EA.
[2024] FWCFB 127
16
[79] Cleanaway’s offer of 21 February 2024 also noted that the nominal expiry date of the
proposed agreement was no longer an agreed term.
[80] On 22 and 23 February 2024, 17 Bargaining Employees signed a petition in the
following terms:
“We the undersigned employees at 5 Charcoal Close, Unanderra, NSW, 2516 will only
vote in support of an enterprise agreement where ordinary hours and weekend
rates are:
a. will be an average of 38 hours per week to be worked within a work cycle
not exceeding 28 days for full-time employees;
b. worked between 4am and 5pm, Monday to Friday;
c. do not exceed 7.6 hours per day to be worked continuously;
d. Saturday work is paid at 150% for the first 2 hours and 200% thereafter; and
e. Sunday work is paid at 200% for all time worked.”
[81] Four Bargaining Employees were on leave on 22 and 23 February 2024, with the result
that they did not have the opportunity to sign the petition.
[82] The TWU sought instructions from its members who work at the Unanderra depot. Their
instructions were to reject Cleanaway’s offer of 21 February 2024. The TWU provided its
written response to the offer to Cleanaway on 23 February 2024. The response rejected the
“package” proposed by Cleanaway and provided the following explanation in relation to the
offer:
“a. the ordinary hours clause is not acceptable and is rejected. Cleanaway is well
aware that TWU members reject any ordinary hours clause that permits ordinary
hours to be worked outside of Monday to Friday. Cleanaway is also well aware
of the reasons employees have consistently rejected this and insist on the
maintenance of the current ordinary hours arrangement, namely (a) they do not
want Cleanaway to have the ability to roster them to work ordinary hours on
weekends; and (B) they do not want to be compelled to work on weekends.
Cleanaway’s revised offer on ordinary hours is worse than the offer put to
employees December last year when Cleanaway put its proposed agreement to
a vote in so far as that offer involved grandfathering of current ordinary hours
arrangements for current employees. That grandfathering has now been
removed. How or why Cleanaway thinks employees would be moved to accept
the worse offer on ordinary hours to that which they resoundingly rejected last
year is not apparent. It is clear that Cleanaway just will not move on its desire to
change the ordinary hours clause so that ordinary hours can be rostered 7 days a
week and up to 9.5 hours a day. The TWU and its members have made clear
their position on the ordinary hours clause. The parties have been at an impasse
on this important clause for a significant time and remain at an impasse;
b. the wage increases proposed are acceptable;
[2024] FWCFB 127
17
c. the consultation clause needs to be read in accordance with the model
consultation clause as it exists from time to time. It is anticipated that the model
consultation clause may be varied in light of recent amendments to the Fair
Work Act 2009 (Cth). This is not reflected in the proposal and is not acceptable;
d. the classification structure proposed is acceptable;
e. the removal of ordinary and customary turnover of labour is acceptable;
f. the proposed annual leave loading clause is acceptable;
g. the proposal for a 3-year nominal expiry date has been rejected over and over
again by the TWU and its members. This is not acceptable.
3. The ‘package’ contained in the proposed agreement is, therefore, not accepted.
The TWU and its members are not willing to resolve all matters relating to the
proposed agreement on the basis of the enclosed draft given the ordinary hours
clause, the consultation issue and the nominal expiry date issue.
[83] Similarly, Mr Stephen gave evidence in his witness statement that TWU members had
provided the following feedback in relation to the ordinary hours of work issue:
“a. They did not want to work weekends unless it was over time and unless it was
their choice to do so (i.e., they wanted to nominate whether they wanted to work
on a weekend, rather than being directed by Cleanaway that they had to);
b. They were unwilling to work over 7.6 ordinary hours per day;
c. They were concerned that where they were required to work 9.5 ordinary hours
per day, employees would lose a significant amount of overtime payment on a
daily basis;
d. There were concerns about there being a four day on and three day off roster;
e. There were concerns over the change to averaging ordinary hours over a six (6)
month period;
f. Members were concerned about their work/life balance and having to change
their current arrangements and lifestyle; and
g. Members who regularly opted to work Saturdays and Sundays were also
concerned that this meant that they wouldn’t necessarily be working on these
days and even when they did, on Saturdays they would receive less income.”
[84] Mr Stephen and Mr Smith emphasised in their oral evidence the concern on the part of
Bargaining Employees that they would lose the opportunity to work overtime on weekends if
new employees could be rostered to work ordinary hours on weekends.
[2024] FWCFB 127
18
[85] On 23 February 2024, Commissioner Ryan conducted a further conference, by
telephone, in relation to Cleanaway’s s 240 application. Representatives of both Cleanaway and
the TWU participated in the conference. Cleanaway’s offer of 21 February 2024 was discussed.
The TWU indicated that the Unanderra yard would not accept a Monday to Sunday ordinary
hours of work clause. Cleanaway indicated that it wanted to continue with the s 240 process.
The TWU indicated that it had a hearing next week and the Full Bench would decide if the
bargaining was in fact intractable. Commissioner Ryan indicated that Cleanaway may make a
further offer. Commissioner Ryan did not list the matter for a further conference, but he
informed the parties that he would keep the s 240 file open and he asked Cleanaway to provide
a report back, in writing, by 4pm on Monday, 4 March 2024. Commissioner Ryan also stated
that he would list the matter for a further conference if requested to do so by Cleanaway.
[86] When Ms White gave evidence in chief at the hearing on 27 February 2024, she stated
that she had received internal approval from Cleanaway to put another offer to the Bargaining
Employees, the essential elements of which are as follows:
(a) ordinary hours will be grandfathered for existing employees, as was the case in the
December 2023 offer. New employees could be rostered to work ordinary hours from
Monday to Sunday;
(b) ordinary hours worked on a Saturday will be paid at 150% for the first two hours and
200% thereafter. Ordinary hours worked on a Sunday will be paid at 200%. As a result,
employees, whether current or new, will be paid the same rates to work on a weekend;
(c) ordinary hours will be a maximum of 7.6 per day if the employee works 5 days on and
two days off. Ordinary hours will be a maximum of 9.5 per day if the employee works
other than a 5:2 roster. Cleanaway would have the right to change an existing or new
employee’s roster and ordinary hours of work after consulting with the employee;
(d) ordinary hours may be averaged over 3 months; and
(e) the exception to the obligation to pay redundancy pay in circumstances of ordinary and
customary turnover of labour will be maintained in the new proposal.
[87] Mr Stephen gave evidence on the day before this revised proposal was communicated
to the Commission and the TWU. Mr Stephen was asked whether he would support any offer
from Cleanaway whereby ordinary hours of work were grandfathered for current employees
and all employees would be paid the same rates of pay on weekends. Mr Stephen effectively
said that he would not support such a proposal because it would give rise to two different sets
of terms and conditions for employees working in the same yard.
[88] At the time of the hearing of this matter on 26 and 27 February 2024, Cleanaway’s
position is that not a single term has been agreed with the TWU or the Bargaining Employees
and everything is “on the table” for negotiation.
Has the Commission dealt with the dispute under s 240 (s 235(2)(a))?
[2024] FWCFB 127
19
[89] The TWU contends that the Commission has dealt with the dispute under s 240 of the
Act on two occasions. First, it was dealt with in relation to the TWU’s s 240 application when
Commissioner Riordan conducted three conferences, two in-person and one by telephone.
Secondly, it was dealt with in relation to Cleanaway’s s 240 application when Commissioner
Ryan conducted two conferences, one in-person and one by telephone.
[90] Cleanaway contends that the Commission has not dealt with the dispute under s 240 of
the Act. As to the TWU’s s 240 application, Cleanaway points to the fact that the TWU’s
application for an intractable bargaining declaration was made while the s 240 proceedings
before Commissioner Riordan were still ongoing and Cleanaway’s opposition to the application
for an intractable bargaining declaration (citing, among other things, that the s 240 proceedings
were still ongoing) was met with the TWU discontinuing its s 240 application. Cleanaway
contends that is does not lie in the mouth of the TWU now to say that its s 240 application has
been “dealt with” or that the TWU “participated in” the Commission’s processes when it was
the TWU that brought the s 240 proceedings to an end before the Commission had a chance to
make a recommendation, express an opinion, or conduct a conciliation or mediation in relation
to the proposal communicated by Cleanaway on 28 and 30 October 2023. Those powers were
not able to be exercised by the Commission, so Cleanaway contends, because at the end of the
second in-person conciliation conference before Commissioner Riordan Cleanaway committed
to go away and provide further details in relation to two matters, and to provide a further revised
enterprise agreement for consideration by the TWU, yet before the TWU responded to those
matters (at 5:04pm on 13 November 2023) the TWU had discontinued its s 240 application (at
2:47pm on 13 November 2023). Cleanaway submits that the Commission cannot be satisfied
of the jurisdictional precondition in s 235(2)(a) because the pre-emptory and unilateral
discontinuance of the TWU’s s 240 application on 13 November 2023 denied the Commission
of the ability to facilitate collective bargaining at the enterprise level, consistent with the
primary object in s 3(f) of the Act and the object of Part 2-4 in s 171(1) of the Act. Further,
Cleanaway contends that the Commission cannot be satisfied that the TWU participated in the
Commission’s processes to deal with the TWU’s s 240 application because those processes
were not finished when the notice of discontinuance was filed.
[91] As to Cleanaway’s s 240 application, Cleanaway submits that it is still being dealt with
by Commissioner Ryan, as is evident from the fact that the Commissioner has left the file open,
requested a written report back from Cleanaway, and indicated that the matter will be listed for
a further conference if Cleanaway so requests.
[92] We are satisfied that the Commission has dealt with the dispute about the proposed
enterprise agreement under s 240 of the Act and the TWU has participated in the Commission’s
processes to deal with the dispute. This jurisdictional prerequisite has been met twice. It was
first met when the TWU filed its s 240 application in the Commission in 2023 and
Commissioner Riordan conducted three conferences, one by telephone and two in-person.
During those conferences the parties to the dispute stated their positions, explained reasons for
their positions, exchanged information and followed the suggestions provided by
Commissioner Riordan, such as participating in two bargaining meetings in between the first
conference (by telephone) and the second conference (in person) and exchanging position
papers. There is no suggestion that Commissioner Riordan made a recommendation or
expressed an opinion when he was dealing with the dispute, but he was not prevented from
doing so during his dealings with the parties. At the end of the second in person conference, at
[2024] FWCFB 127
20
which the outstanding claims were discussed, Cleanaway indicated that it would put another
bargaining proposal to the TWU and the TWU indicated that it would respond to the proposal.
Importantly, however, it was not suggested that either Cleanaway’s proposal or the TWU’s
response would be given in a conference before the Commission. At the time the TWU filed its
notice of discontinuance on 13 November 2023, the TWU’s s 240 application had been before
the Commission for more than three months, the Commission had held three conferences, it
was not contemplated by Commissioner Riordan that any further step would be taken in the s
240 proceedings and the parties had not requested that any such step be taken, and the parties
were a long way apart from reaching an agreement to resolve the dispute. Having regard to all
the circumstances, we are satisfied that by 13 November 2023 the Commission had dealt with
the dispute about the proposed agreement under s 240 and the TWU had participated in the
Commission’s processes to deal with the dispute.
[93] The jurisdictional requirement in s 235(2)(a) of the Act has also been met in relation to
the s 240 application filed by Cleanaway on 24 January 2024. Commissioner Ryan has
conducted two conferences, one in person and one by telephone, in relation to this application.
Both the TWU and Cleanaway have participated in the Commission’s processes by attending
those conferences, at which they exchanged positions, views and information. At the first
conference, on 15 February 2024, Cleanaway communicated a proposal (through
Commissioner Ryan) and the TWU rejected the proposal. Cleanaway then put essentially the
same proposal to the TWU in writing on 21 February 2024. After consulting with members, the
TWU rejected that proposal on 23 February 2024. At the second conference, on 23 February
2024, the parties’ positions were discussed and Commissioner Ryan indicated to the TWU that
Cleanaway may make a further offer. Commissioner Ryan has not closed the Commission’s
file in relation to Cleanaway’s s 240 application, nor has he listed the matter for a further
conference or scheduled any further step to be taken in the proceedings, apart from the provision
of a written report back by Cleanaway. The Commissioner’s invitation for Cleanaway to request
a further conference in the future suggests that the Commission may have future dealings with
the dispute under s 240 of the Act, but this does not alter the position that the Commission has,
as a matter of fact, dealt with the dispute about the proposed enterprise agreement under s 240
of the Act.
[94] There is no doubt that both s 240 dispute proceedings have dealt with the same dispute,
namely the main outstanding issues in bargaining for a new enterprise agreement to replace the
Unanderra EA. It is also beyond question that the TWU’s application for an intractable
bargaining declaration is concerned with the same dispute. It follows that, like the Full Bench
in United Firefighters’ Union of Australia v Fire Rescue Victoria,19 we do not need to deal with
any constructional issue under s 235(2)(a) of the Act as to whether the s 240 dispute must be
the same dispute which is said to have caused bargaining to become intractable for the purpose
of an application under s 234 of the Act.
Is there no reasonable prospect of agreement being reached if the Commission does not
make the declaration (s 235(2)(b))?
[95] The TWU contends that there is no reasonable prospect of agreement being reached as
to the terms of a new enterprise agreement if the Commission does not make an intractable
bargaining declaration.
[2024] FWCFB 127
21
[96] Cleanaway submits that, consistent with the statutory objects of emphasising,20
enabling21 and facilitating22 enterprise-level collective bargaining, the state of satisfaction
required by s 235(2)(b) should not be too lightly reached.
[97] Cleanaway submits that the petitions signed by employees were not managed in the
same way as a secret ballot would be conducted when a proposed enterprise agreement is put
to employees for their approval. Nor, so Cleanaway submits, do the petitions say anything about
the signatories’ stated preparedness to approve an agreement which grandfathers their current
hours of work provisions for existing employees.
[98] Cleanaway points to the large number of enterprise agreements made with groups of
employees at its other depots, some of which include different arrangements for the working of
ordinary hours. Cleanaway also emphasises the concessions it has made in bargaining in
relation to wage increases, back pay, maximum ordinary hours per day (9.5 hours, but 7.6 hours
if an employee is working a 5:2 roster).
[99] Cleanaway submits that in circumstances where it has very recently indicated a
preparedness to put to a vote a further revised enterprise agreement, containing a grandfathering
provision for ordinary hours of work, enhanced penalty rates for work on weekends (whether
the work is undertaken as part of an employee’s ordinary hours of work or on overtime), wage
increases and the like, the Commission cannot be satisfied that there is no reasonable chance of
an agreement being made.
[100] We are satisfied that there is no reasonable prospect of agreement being reached if the
Commission does not make the declaration. In reaching this state of satisfaction, we have had
regard to all the circumstances, including the revised offer foreshadowed by Cleanaway at the
hearing on 27 February 2024, and wish to emphasise the following matters in making our
evaluative assessment that it is rationally improbable that an agreement will be reached:
(a) The parties have been bargaining since November 2022, during which time they have
participated in about 15 bargaining meetings and five conferences before two different
members of the Commission. Notwithstanding this history and the efforts of those
involved in the bargaining process, nothing is agreed between the parties.
(b) Two different proposed enterprise agreements have been put to the Bargaining
Employees for their vote. Both proposed agreements have been voted down in a
resounding manner.
(c) While the ability of Cleanaway and different groups of employees to make enterprise
agreements at different depots gives some comfort that Cleanaway and the Bargaining
Employees may be able to reach an agreement to replace the Unanderra EA, it is
important to focus on the facts and circumstances of the present case, including the
desires of the Bargaining Employees and the likelihood of a majority of them reaching
agreement with Cleanaway. Eskine Park is an example of a situation where Cleanaway
and its employees at that depot are at an impasse in bargaining, notwithstanding the
success Cleanaway has had at other depots to make enterprise agreements with different
groups of employees.
[2024] FWCFB 127
22
(d) Although Ms White obtained feedback from some of the Bargaining Employees in
November and the first half of December 2023 which suggested that they may be willing
to agree to some changes to the ordinary hours of work provisions in the Unanderra EA,
Ms White factored that feedback into the proposal she put to the Bargaining Employees
for a vote in December 2023. The outcome of that vote was 20 against and zero for the
proposed enterprise agreement.
(e) A significant number of the Bargaining Employees have signed two petitions. The first
petition was signed in November 2023 and the second petition was signed as recently
as 22 and 23 February 2024. Both petitions make clear that the signatories want to retain
most of the essential elements of the ordinary hours provisions of the Unanderra EA,
including working ordinary hours from Monday to Friday, ordinary hours not exceeding
7.6 per day,23 the averaging of 38 ordinary hours per week to be calculated over a 28
day period, and work on a weekend to be paid at penalty rates. Although such petitions
are not prepared in the same manner as a secret ballot for a vote on a proposed enterprise
agreement and there is always some prospect that particular employees may vote
differently in a secret ballot than is suggested by their signature on a petition prepared
by a union, we consider that it is appropriate to give some weight to the petitions,
particularly in circumstances where they are supported by the evidence given by Mr
Stephen, Mr Smith and Mr Moon (insofar as he does not believe that the employees at
the Unanderra depot will support an enterprise agreement which includes the
grandfathering of ordinary hours for existing employees).
(f) The main issue in dispute in bargaining is the claim by Cleanaway to change the existing
hours of work provisions in the Unanderra EA so that at least some employees can be
directed to work ordinary hours on the weekend. This is a “key matter” and “one of the
most important matters” in bargaining for Cleanaway. Mr Moon, the Cleanaway
manager with responsibility for the Unanderra depot, gave evidence, which we accept,
that Cleanaway is determined to move to a seven day a week span of ordinary hours for
the Unanderra depot and it is not going to budge on this issue. Mr Moon gave sound
business reasons for adopting this position. Equally, the Bargaining Employees have
provided sound reasons for rejecting the changes proposed by Cleanaway to their
ordinary hours of work. The Bargaining Employees do not want a two-tier workforce,
where existing employees are on one set of terms and conditions and new employees
are on different terms and conditions, with the risk that the provisions for current
employees will be phased out over time. Further, even if ordinary hours worked by new
employees on a weekend are paid at the same rate as overtime worked by existing
employees on a weekend (as indicated in the proposal foreshadowed by Cleanaway on
27 February 2024), existing employees are concerned that their opportunity to work
overtime on a weekend will be diminished if new employees can be directed to work
their ordinary hours on a weekend. The consistent position of the Bargaining Employees
throughout bargaining has been to reject any proposal which permits ordinary hours to
be worked on a weekend. We consider it to be rationally improbable that either
Cleanaway or the Bargaining Employees will change their position on the working of
ordinary hours across seven days of the week.
(g) In our view, it is rationally improbable that the most recent proposal foreshadowed by
Cleanaway at the hearing on 27 February 2024 will break the current impasse. First, the
[2024] FWCFB 127
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proposal includes the grandfathering of ordinary hours for existing employees, with new
employees able to be rostered to work ordinary hours on weekends at the same rates of
pay as overtime for existing employees on a weekend. For the reasons already
explained, including the resounding rejection by the Bargaining Employees, in
December 2023, of a proposed enterprise agreement that included the grandfathering of
ordinary hours for existing employees, we consider it to be rationally improbable that
the Bargaining Employees will accept this aspect of the proposal. Although this
proposal overcomes the concern of Cleanaway being able to roster new employees to
work on a weekend at a lower rate of pay compared to existing employees, it does not
overcome the concerns of a two-tier workforce and the loss of opportunity for existing
employees to work and earn overtime on a weekend. Secondly, the proposal increases
the maximum daily ordinary hours that may be worked from 8 per day to 9.5 per day,
unless the employee is working a 5:2 roster (in which case the daily maximum is 7.6
hours). An employee’s roster may be altered by Cleanaway after it consults with the
employee, so even existing employees may, under this proposal, be rostered up to 9.5
ordinary hours in a day. This is a material disadvantage compared to the Unanderra EA,
under which employees are entitled to overtime after they work 8 ordinary hours in a
day. Thirdly, the proposal permits Cleanaway to average an employee’s ordinary hours
over a three month period, as opposed to a 28 day period under the Unanderra EA. This
is a material disadvantage to employees. Fourthly, the proposal includes contentious
and unresolved claims in relation to Cleanaway’s ability to avoid redundancy payments
where there is an ordinary and customary turnover of labour, the nominal expiry of the
proposed agreement, and annual leave loading.
Is it reasonable in all the circumstances to make the declaration (s 235(2)(c))?
[101] The TWU contends that it is reasonable in all the circumstances for the Commission to
make the declaration sought by it.
[102] Cleanaway contends that the Commission should not be satisfied under s 235(2)(c) of
the Act that it is in all the circumstances reasonable to make the proposed declaration.
Cleanaway submits that the TWU’s intransigence during bargaining, coupled with the
following unreasonable conduct on the TWU’s part, weighs against a conclusion that making
the proposed declaration is reasonable:
(a) The TWU steadfastly refused to consider Cleanaway’s ordinary hours of work clause,
as part of a proposed enterprise agreement, notwithstanding that other enterprise
agreements made by Cleanaway and its employee drivers (represented by the TWU) at
other sites have agreed to clauses in similar terms.
(b) The TWU never proposed, or explored, a grandfathering provision or other
arrangement, which would address the current employees’ stated concerns about their
hours of work while also addressing Cleanaway’s stated desire to “future proof” the
Unanderra depot.
(c) The TWU participated in only one telephone conference and two conciliation
conferences in the s 240 proceedings commenced by the TWU, and in that process never
[2024] FWCFB 127
24
provided the Commission with the opportunity to deal with the dispute by exercising its
powers under s 595(2)(b) of the Act.
(d) The TWU refused to meet with Cleanaway in further bargaining meetings after the
conference before the Commission on 18 October 2023.
(e) When Cleanaway provided further details on 28 October 2023 and a further revised
proposed agreement on 30 October 2023, as it had committed to do as part of the s 240
process, the TWU initially wrote back only a very short email rejecting certain elements
without explaining why. And then, when asked to explain its specific concerns, only
then for the first time did the TWU explain to Cleanaway’s negotiators the reasons for
the positions it took in relation to annual leave loading and classifications.
(f) Instead of going back before the Commission in relation to the s 240 application filed
by the TWU, particularly in light of the concessions that had been made by Cleanaway
since the 18 October 2023 conference, the TWU peremptorily and without explanation
discontinued the s 240 proceedings. This was not only a missed opportunity, it denied
the Commission the ability to deal with the dispute using its processes under s 595(2)
of the Act.
[103] In contrast to the TWU’s unwillingness to budge on the ordinary hours of work issue,
Cleanaway says that it has made a range of different concessions and demonstrated a
willingness to be flexible so that an agreement can be reached. This is consistent with the
manner in which Cleanaway says that it has been able to reach agreement with employees at
different depots, such as the Hillside depot.
[104] Cleanaway submits that bargaining has been going on only a number of months longer
than the bare minimum required under s 235(5) of the Act, which is not enough to tip the balance
over to make it reasonable to make a declaration.
[105] Cleanaway submits that although the Bargaining Employees have not had a pay rise
since 1 July 2021, this is not a strong factor in support of the making of declaration. In a context
where the emphasis is on enterprise-level collective bargaining, Cleanaway submits that it is
important to note that its current position is that, in an attempt to reach agreement as part of an
overall package, it is prepared to make back payments of wage increases for 2022 and 2023.
But if an agreement to an overall package cannot be reached, then there is no agreement as to
back pay and this will be a matter that will have to be determined by the Commission.
Cleanaway submits that there can be no guarantee for the employees that, after a workplace
determination process lasting potentially months, they will receive any back pay at all. The best
way for the Commission to facilitate the making of back payments is, so Cleanaway contends,
to dismiss the application and encourage the parties back to the bargaining table to discuss the
proposed agreement most recently foreshadowed by Cleanaway.
[106] Cleanaway contends that its reasons for opposing the making of a declaration –
fundamentally so that the parties could focus on enterprise-level collective bargaining,
consistent with the objects of the Act – are well-founded. By contrast, Cleanaway submits that
the TWU’s support for the making of a declaration seems to be born of a desire not to bargain
[2024] FWCFB 127
25
collectively at the workplace level. Weighed together, Cleanaway submits that the views of the
main bargaining representatives tip the balance against the making of a declaration.
[107] Cleanaway submits that in order to reach a state of satisfaction in relation to s 235(2)(c)
of the Act, it is necessary to take into account the views of the two individual bargaining
representatives. Given that the Commission does not know the views of those two individuals,
Cleanaway submits that the Commission cannot reach the necessary state of satisfaction under
s 235(2)(c) of the Act.
[108] Cleanaway submits that the broader history of the relationship of collective bargaining
between the parties, in particular the history of enterprise bargaining for agreements covering
similar employees and other Cleanaway depots, weighs against a finding that it is reasonable in
all circumstances to make the declaration. On this score, the following matters were relied on:
(a) Cleanaway currently has over 100 enterprise agreements which have been successfully
collectively bargained at the enterprise level, including approximately 51% with the
TWU.
(b) About 37 current enterprise agreements, negotiated in the last 24 months, have been
agreed to by Cleanaway employee drivers with ordinary hours of work clauses similar
to the clause sought at the Unanderra depot by Cleanaway.
(c) A number of those agreements have included modifications, such as grandfathering
arrangements (e.g. the Hillside agreement), where the employer and employees at the
site have agreed to those arrangements in the circumstances of the particular site.
[109] That industrial history suggests, so Cleanaway contends, that, despite the professed
intransigence of the TWU in relation to the proposed agreement at the Unanderra depot, if left
to engage in enterprise-level collective-bargaining the parties will reach agreement between
themselves.
[110] We are satisfied that it is reasonable in all circumstances the to make the declaration
sought by the TWU, taking into account the views of the bargaining representatives for the
agreement.
[111] We do not have any direct evidence or information from the two individual bargaining
representatives as to their views in relation to the declaration sought by the TWU. Both
individuals signed the two employee petitions in November 2023 and February 2024
respectively, but despite being made aware of these proceedings they have elected not to take
any part in them or to inform the Commission of their views in relation to the application by
the TWU for an intractable bargaining declaration. In our view, it would be impracticable to
require every individual bargaining representative for a proposed agreement (which in some
cases includes scores of individuals) to inform the Commission of their views in relation to an
application by one bargaining representative for an intractable bargaining declaration. We
consider that it is important as a matter of natural justice for all individual bargaining
representatives to be made aware of an application to the Commission for an intractable
bargaining declaration, but if one or more individual bargaining representatives decide not to
inform the Commission of their views in relation to the application, that does not preclude the
[2024] FWCFB 127
26
Commission from being able to reach the necessary state of satisfaction under s 235(2)(c) of
the Act.
[112] The TWU is a bargaining representative for the proposed agreement. It represents a
significant number of the Bargaining Employees. The TWU supports the making of the
declaration sought by it. We consider that the TWU has sound reasons for its position in that
regard. We have taken the TWU’s views into account.
[113] Cleanaway is also a bargaining representative for the proposed agreement. It opposes
the making of the declaration sought by the TWU. We consider that Cleanaway has sound
reasons for its position in that regard. We have taken Cleanaway’s views into account.
[114] We do not accept Cleanaway’s contention that the TWU has been intransigent,
unreasonable, uncooperative or recalcitrant in the bargaining process for an enterprise
agreement to replace the Unanderra EA. It is Cleanaway that wishes to alter the ordinary hours
of work provisions in the Unanderra EA. The TWU and the Bargaining Employees essentially
want the current provisions to be retained in a replacement enterprise agreement. Further, as we
have explained, there are sound reasons why the Bargaining Employees do not want Cleanaway
to be able to roster all, or any, employees to work ordinary hours on a weekend. In the
circumstances of this case, the position of the TWU and the Bargaining Employees in wanting
to retain the benefits of the ordinary hours of work provisions of the Unanderra EA does not
weigh against a conclusion that it is reasonable in all the circumstances to make the declaration
sought by the TWU.
[115] We consider that both parties have engaged in a meaningful way in the Commission’s
processes in relation to both s 240 applications. Both parties have exchanged views, provided
information, discussed different proposals, explored reasonable options, and communicated
reasons for their positions. We reject Cleanaway’s contention that the TWU has failed or
refused to provide reasons for rejecting the grandfathering of ordinary hours for existing
employees, or that it has acted inappropriately in relation to either s 240 application before the
Commission. It is clear from the evidence adduced by the TWU that it has a number of reasons
for opposing such grandfathering and it communicated those reasons in the conferences before
Commissioner Riordan and in its written communications with Cleanaway. Mr Stephen and Mr
Smith also explained those reasons further in their evidence to the Commission. The TWU’s
decision to discontinue its s 240 application on 13 November 2023 was made in light of the
view it had reached at that time that bargaining had reached an impasse. We consider that was
a reasonable view for the TWU to have taken at that time. The TWU engaged in a meaningful
way in the Commission’s processes, the object of which were to assist the parties to reach an
agreement.
[116] We do not consider that the broader history of the relationship of collective bargaining
between the parties weighs against a conclusion that it is reasonable in all the circumstances to
make the declaration sought by the TWU. That history shows that on many occasions
Cleanaway has been able to negotiate an enterprise agreement with employees at a particular
depot (sometimes with the involvement of the TWU), but there are occasions (such as Erskine
Park) where bargaining has reached an impasse, much for the same reason as it has at the
Unanderra depot. If an intractable bargaining declaration is not made in this case, we accept the
[2024] FWCFB 127
27
submission advanced on behalf of the TWU that the only real option available to the Bargaining
Employees would be to take further protected industrial action.
[117] For the reasons explained above, we reject the contention that the TWU refused to meet
with Cleanaway in further bargaining meetings after 18 October 2023. Cleanaway has not
invited the TWU or the Bargaining Employees to attend a bargaining meeting since well before
18 October 2023. Instead, Cleanaway has chosen to engage in communications directly with
the TWU, partly in proceedings before the Commission, in an attempt to negotiate a new
enterprise agreement for the Bargaining Employees.
[118] We consider that the fact the Bargaining Employees have not had a pay rise since July
2021, during a period of relatively high inflation, weighs in support of a conclusion that it is
reasonable in all the circumstances, including the current impasse in bargaining after
unsuccessful negotiations for more than 15 months, to make the declaration.
Residual discretion under s 235
[119] Having regard to all the circumstances, we have not identified any matter which would
weigh against us exercising our residual discretion to make an intractable bargaining
declaration.
Should there be a post-declaration negotiating period (s 235A)?
[120] The TWU submits that there would be little utility in ordering a post-declaration
negotiating period.
[121] Cleanaway submits that if the Commission is satisfied that the jurisdictional
prerequisites are made out to make a declaration under s 235, the Commission should order that
there be a post-declaration negotiating period of at least 30 days so that further bargaining can
take place between the parties.
[122] We are satisfied that a 21 day post-declaration negotiating period should be ordered.
Cleanaway has put its recent bargaining proposals to the TWU and the Bargaining Employees
on the basis that they are a “package” deal, with the result that the rejection of any part of the
“package” means that the entire proposal is rejected and all matters are open for negotiation. It
follows that there are currently no agreed matters in bargaining between the parties, although
we accept that there may be some arguments as to whether any matters were agreed at the time
the application for the intractable bargaining declaration was made by the TWU in the
Commission.24 Giving the parties a relatively short period of time (21 days) to attempt to reach
agreement on at least some terms will not unduly delay the hearing of the determination and
will also, in our view, likely reduce the length of the hearing.
[123] A member of the Commission will be made available, if requested by the parties, to
assist the parties during the 21 day post-declaration negotiating period.
Conclusion
[2024] FWCFB 127
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[124] For the reasons given we make an intractable bargaining declaration in relation to the
proposed enterprise agreement which will replace the Unanderra EA. The declaration is made
by separate order, which will be published in conjunction with this decision and which, in
accordance with s 235(4)(a) of the Act, will operate from the date of this decision. The
declaration will specify a post-declaration negotiating period of 21 days.
DEPUTY PRESIDENT
Appearances:
M. Gibian SC and P. Boncardo, of counsel, for the Transport Workers’ Union of Australia.
B. Avallone, of counsel, for Cleanaway Operations Pty Ltd.
Hearing details:
2024.
Sydney:
26 & 27 February
Printed by authority of the Commonwealth Government Printer
PR772154
1 [2024] FWC 91
2 [2023] FWCFB 180
3 Ventia Australia Pty Ltd v United Firefighters’ Union of Australia [2023] FWC 3041 at [84]
4 [2024] FWC 91
5 Australian Workers’ Union v Caltex Refineries (NSW) Pty Ltd, 10 July 2000, Print S7892, at [24]
6 Australian Collieries’ Staff Association v Gordonstone Coal Management Pty Ltd (1999) 86 IR 229 at 234
7 Macquarie Dictionary, Revised Third Edition
8 Ibid
9 Section 3(f) of the Act
10 Section 171(a) of the Act
11 At paragraphs [108], [821] & [827]
12 Ex R2 at [8]-[9]; Ex R3 at [4]-[6]
13 Ex R5 at [12]
THE FAIR WORK AIR NORK C OMMISSION KLIA SEX THE SEAL OF THE
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb180.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc3041.pdf
[2024] FWCFB 127
29
14 Ex R2 at [19]; Ex R4 at [18]; Ex R5 at [12] & [15]-[32]
15 Ex R2 at [21]
16 Court Book at p 1101
17 Ex R2 at [45]
18 Ex R3 at [16]-[17]
19 [2023] FWCFB 180 at [28]
20 Section 3(f) of the Act
21 Section 171(1)(a) of the Act
22 Section 171(1)(b) of the Act
23 Clause 21(b) of the Unanderra EA provides for the maximum daily ordinary hours to be 8 hours
24 Section 274(3)(a) of the Act
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb180.pdf
